In re B.S.

Supreme Court of West Virginia

March 12, 2018

In re B.S.

Hancock
County 16-JA-27

MEMORANDUM DECISION

Petitioner
Mother, A.R., by counsel, P. Zachary Stewart, appeals the
Circuit Court of Hancock County's October 2, 2017, order
terminating her parental rights to B.S.[1] The West Virginia
Department of Health and Human Resources ("DHHR"),
by counsel Lee Niezgoda, filed a response in support of the
circuit court's order. The guardian ad litem
("guardian"), Cathryn A. Nogay, filed a response on
behalf of the child in support of the circuit court's
order. On appeal, petitioner argues that the circuit court
erred in (1) failing to order the DHHR to file a unified
child and family case plan pursuant to West Virginia Code
§ 49-4-408, (2) failing to hold a dispositional hearing
within thirty days of the termination of petitioner's
post-adjudicatory improvement period, and (3) failing to
enter a dispositional order within ten days of the close of
the dispositional hearing.[2]

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On
March 16, 2016, the DHHR filed an abuse and neglect petition
against petitioner alleging that upon birth, B.S. tested
positive for buprenorphine and that petitioner tested
positive for buprenorphine and amphetamines. The DHHR further
alleged that petitioner had a history of heroin abuse and was
taking buprenorphine during her pregnancy to refrain from
using heroin. Two days after the child's birth, he was
transferred from Weirton Medical Center to Allegheny General
Hospital in Pittsburgh, Pennsylvania, in order to receive
more intensive treatment due to symptoms of withdrawal. B.S.
was placed in a foster home upon release from the hospital.
According to the DHHR, petitioner had four older children
that were the subject of an abuse and neglect proceeding in
Ohio that stemmed from an incident wherein one of the
children was hospitalized with a subdural hematoma, occipital
skull fracture, hypoxic brain injury, 7th rib
fracture, 8th rib fracture, left tibia fracture,
left 1st toe fracture, left radius fracture, left
ulna fracture, and right radius fracture. The child was
rendered blind due to his injuries, all of which were found
to be caused by non-accidental means. All four of
petitioner's older children were removed from her custody
and placed with relatives. According to the record, the DHHR
did not establish that petitioner's parental rights to
the four older children were terminated. None of those
children are at issue in this appeal. Petitioner waived her
preliminary hearing.

On
September 27, 2016, the circuit court held an adjudicatory
hearing wherein petitioner stipulated that she abused drugs
while pregnant with B.S. and that her history of drug abuse
impaired her ability to safely parent the child. The circuit
court granted petitioner a post-adjudicatory improvement
period. Additionally, during the hearing, the circuit court
reviewed a written document entitled "[Petitioner's]
Post-Adjudicatory Plan of Improvement, " which contained
the terms and conditions of petitioner's improvement
period as formulated by the multidisciplinary team
("MDT"). The circuit court reviewed the document in
detail on the record with petitioner and confirmed her
understanding of its terms and conditions. The record
indicates that the MDT met at least twice concerning the
terms and conditions of petitioner's improvement period.
According to the DHHR, the plan of improvement identified
petitioner's drug abuse issues and set forth a plan,
including services and specific directions, for petitioner to
follow to assist her in implementing the plan and
successfully achieving its goals.

In
November of 2016 and December of 2016, the circuit court held
review hearings and ordered that petitioner's
post-adjudicatory improvement period continue. In March of
2017, petitioner was incarcerated in Ohio and entered a plea
to a felony charge of child endangerment, based on the
non-accidental injuries caused to one of her older children,
for which she was sentenced to serve a six-month sentence of
incarceration followed by intensive supervised probation.
Petitioner remained incarcerated for the remainder of the
proceedings. On June 19, 2017, the circuit court held a
status hearing wherein the guardian reported to the circuit
court regarding the status of petitioner's criminal
conviction and sentence and moved the circuit court to
terminate petitioner's post-adjudicatory improvement
period and schedule the case for a final dispositional
hearing. Although petitioner's post-adjudicatory
improvement period expired naturally in March of 2017, the
circuit court granted the guardian's motion and scheduled
the matter for a final dispositional hearing.

On
August 4, 2017, the circuit court held a dispositional
hearing. A caseworker testified that petitioner failed to
fully participate in her post-adjudicatory improvement
period. Specifically, she testified that petitioner missed
her psychological evaluation appointment and when it was
rescheduled, petitioner was already incarcerated and unable
to attend. Additionally, although petitioner did not screen
positive for illicit drugs during her improvement period, she
screened only thirty-five of the ninety-five times screens
were requested prior to her incarceration. Further,
petitioner failed to keep in contact with her caseworker and
attended thirty-four visitations with B.S., but cancelled
twenty-four visits, most of which were cancelled without good
cause. Lastly, the caseworker reported that petitioner failed
to attend therapy as ordered, and attended three out of
seventeen parenting sessions. The circuit court found that
there was no reasonable likelihood that the conditions of
abuse and neglect could be corrected in the near future and
that termination of petitioner's parental rights was in
the child's best interests. Ultimately, the circuit court
terminated petitioner's parental rights in its October 2,
2017, order.[3]It is from the dispositional order that
petitioner appeals.

The
Court has previously established the following standard of
review:

"Although conclusions of law reached by a circuit court
are subject to de novo review, when an action, such
as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based
upon the evidence and shall make findings of fact and
conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is
clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of
the record viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).

First,
petitioner argues that the circuit court erred in failing to
order the DHHR to develop and file a child and family case
plan pursuant to West Virginia Code §
49-4-408(a). We find petitioner's argument to be
unpersuasive. While petitioner is correct that West Virginia
Code § 49-4-408(a) requires that a family case plan be
filed within sixty days of the child coming into foster care
or thirty days of an improvement period's inception, the
Court does not find reversible error on that issue under the
circumstances of this case.

Where it appears from the record that the process established
by the Rules of Procedure for Child Abuse and Neglect
Proceedings and related statutes for the disposition of cases
involving children adjudicated to be abused or neglected has
been substantially disregarded or frustrated, the resulting
order of disposition will be vacated and the case remanded
for compliance with that process and entry of an appropriate
dispositional order.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;According
to petitioner, no MDT meetings were held for the purpose of
developing a unified child and family case plan and, thus,
there were no standards by which to gauge her progress
through her improvement period. However, the record indicates
that the MDT met at least twice to develop the terms and
conditions of petitioner&#39;s improvement period. Moreover,
these terms and conditions were memorialized in
petitioner&#39;s post-adjudicatory plan of improvement, which
the circuit court reviewed with petitioner in detail on the
record. The purpose of a case plan is to "set forth an
organized, realistic method of identifying family problems
and the logical steps to be used in resolving or lessening
these problems." Syl. Pt. 5, in part, State ex rel.
W.Va. Dep&#39;t of Human Servs. v. Cheryl M., 177 W.Va.
688, 356 S.E.2d 181 (1987). Here, petitioner's
post-adjudicatory plan of improvement served the same purpose
as a case plan as it clearly identified ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.